Published 4:00 am, Saturday, May 1, 1999

1999-05-01 04:00:00 PDT SACRAMENTO -- Governor Gray Davis yesterday rejected the clemency petition of Manny Babbitt, setting the stage for the Vietnam veteran's execution at San Quentin in three days.

Barring a last-minute reprieve, his execution is scheduled for 12:01 a.m. Tuesday by lethal injection. He would be the seventh inmate executed in California since executions were resumed in 1992.

"I have considered Mr. Babbitt's clemency application and the submitted materials and clemency is denied," Governor Davis wrote in a 15-page decision. "I am not persuaded that there is reason to overturn the jury's verdict."

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Late yesterday, Babbitt's defense lawyers filed a petition in the California Supreme Court requesting an emergency stay of execution based on allegations that his trial lawyer was racially biased and drank heavily during the trial.

Manuel Pina Babbitt, 49, was convicted and sentenced to death for the 1980 murder of Leah Schendel, 78, who died of a heart attack after she was robbed and severely beaten in her Sacramento home.

The former Marine had asked the governor, himself a Vietnam veteran, to commute his sentence to life in prison without parole.

Babbitt, a Purple Heart recipient, lived through the horrors of the 77- day siege of Khe Sanh -- one of Vietnam's bloodiest battles. When he returned from the war, he fell into trouble with the law. He burglarized 27 summer cottages in 1972, and a year later was convicted of armed robbery of two gas stations. He spent two years in mental institutions, where he was diagnosed as a paranoid schizophrenic.

"As difficult and unsettled as Mr. Babbitt's childhood, military service and return to civilian life may have been," the governor wrote, "such harsh life experience is not the type of mitigation sufficient to grant clemency for a brutal capital crime.

"Countless people have suffered the ravages of war, persecution, starvation, natural disasters, personal calamities and the like. But such experiences cannot justify or mitigate the savage beating and killing of defenseless, law-abiding citizens," he wrote.

The Schendel family immediately praised the decision.

"What should have been is now going to be," said the victim's son, Don Schendel, of Thousand Oaks.

"Our family is very grateful to Governor Davis for his strong commitment to justice," said Schendel's granddaughter, Laura Thompson, of Auburn. "Our hearts and prayers go out to Bill Babbitt and his family, but we feel that this is the only proper response to capital crime and we will continue to stand behind it."

Bill Babbitt, of Sacramento, turned in his brother, Manny, to police after he read about Schendel's murder in the newspaper. Police transcripts show that a detective assured Bill Babbitt that his brother would not be sent to the gas chamber and would get the help he needed for his mental illness.

"It's a disappointment from the governor, who himself is a Vietnam veteran, that he fails to understand post-traumatic stress disorder," said Babbitt's lead counsel, Chuck Patterson. "Manny is taking it far better than anyone is. There's not a person he wants to blame."

"It's devastating," said Lynn Dornan, a retired police officer in Detroit, who testified earlier this week at a clemency hearing that Babbitt had saved his life during an artillery attack at Khe Sanh. "The guy didn't get a fair trial and they're still going to execute him. I can't believe it."

Ernie Spencer, who also fought beside Babbitt at Khe Sanh, said: "Manny asked that I tell the Khe Sanh brothers that he's sorry for putting a dark cloud over everyone. He's going to die like a Marine."

Previous executions have been delayed by 11th-hour appeals, but in an effort to speed the process along, federal courts have made it difficult to get a last-minute hearing.

The allegation in the appeal to the state Supreme Court has not been previously reviewed by that panel.

"The racial bias of trial counsel resulted in a denial of the petitioner's constitutional right to counsel, a fair and impartial jury and a reliable determination of guilt and penalty," the latest petition states. Babbitt is black and his trial attorney, James Schenk, is white.

The petition also says that Schenk's "serious use of alcohol throughout the trial compounded the insidious effects of his racial bias and further impaired his ability."

Schenk has denied being inebriated during the trial.

The court may rule on the appeal during the weekend, or it may wait until Monday.

If the execution proceeds, Babbitt would be the first California inmate to be executed who was denied an evidentiary hearing on the claim that he had an unfair trial.

In his decision, the governor emphasized that state and federal courts have turned down Babbitt's appeals for a new trial. And he cited the unanimous recommendation of the state Board of Prison Terms to deny Babbitt's plea for clemency.

He also refuted several arguments raised by Babbitt's defense team, including the contention that the veteran was suffering from a combat-induced flashback when Schendel was slain.

"Mr. Babbitt's lifelong and violent criminal activities do not support his plea for clemency," wrote the governor, citing Babbitt's burglary and robbery convictions as well as the attempted rape of a woman whom Babbitt attacked several hours after Schendel was slain.

The governor rejected the contention of Babbitt's appellate lawyers that the prosecutor at trial was guilty of misconduct because he repeatedly instructed the jury to disregard the testimony of psychiatrists who claimed that Babbitt was mentally ill.

He also concluded that Babbitt's expression of remorse was unsatisfactory because the condemned inmate insists that he does not recall attacking Schendel. And he discounted the views of two jurors who recently signed affidavits on behalf of Babbitt.